An important part of creating a last will is naming a personal representative (executor) to handle matters once the testator or testatrix has died.
But what does a personal representative in South Carolina do? If you’ve been named a personal representative in a last will in South Carolina, or someone has asked if you’d be willing to take the role, you should know what’s expected.
Personal representatives have certain rights, roles, and responsibilities under the law, and face potential risks, which we’ll cover here. But first, we’ll look at when you may want to hire a probate attorney to help you perform your duties.
Do I Need to Hire a Probate Attorney in South Carolina?
In South Carolina, there is no legal requirement for a personal representative to hire an attorney in order to settle an estate. However, you may want to.
Settling the decedent’s estate may be a small, straightforward job or a long, complicated one. If you’re the personal representative of a small estate with few heirs, you may feel comfortable completing the job yourself.
But if the estate is large and complex, or if there are several heirs and beneficiaries with contentious personalities and relationships, you should strongly consider working with a probate attorney to help you carry out all the duties listed below. A probate attorney knows what to do, saves you time, and helps you avoid mistakes that could be costly to the estate or even to you, personally (more on that below). And if you expect family drama, a probate attorney can help keep familial relations congenial while acting as a “buffer” between you and the conflict.
Since probate attorneys are paid out of the estate, it doesn’t cost you anything out of pocket; however, it does also mean the value of the estate will be diminished somewhat.
Learn more about probate in South Carolina here.
Rights of the Personal Representative in South Carolina
The personal representative has many more responsibilities than rights, but one right they do have under South Carolina law is the right to compensation paid out of the estate. SC Code § 62-3-719 states that a personal representative is entitled to a minimum of $50, regardless of the estate’s value, up to a maximum of 5% of the estate’s value. In some cases, the court may approve additional compensation “for extraordinary services.” The personal representative may waive their right to compensation.
The personal representative also has a right to be reimbursed for expenses they incur settling the estate.
Role of the Personal Representative
The role of the personal representative is to distribute the estate of the deceased person according to the terms of their will. (If there is no will, the court appoints an administrator to handle the estate. Read more about dying intestate – without a will – in South Carolina here.)
The tasks for a personal representative in South Carolina to carry out include:
- Locating and listing decedent’s assets including bank accounts, securities, and real property
- Settling outstanding debts and giving notice to potential creditors of the decedent’s death
- Paying outstanding taxes and bills, including funeral expenses
- Distributing assets according to the terms of the will to heirs and beneficiaries
- Filing lawsuits if necessary
- Closing out the estate
To an extent, the will may partially define the role of the personal representative. It may be very prescriptive in how the personal representative is in carrying out their role, or it may give them more leeway in how to distribute assets. But regardless of how much leeway the will gives a personal representative, the tasks they must carry out remain the same.
Responsibilities and Risks of the Personal Representative
All personal representatives have a legal responsibility to act in the best interests of the estate and its heirs and beneficiaries rather than themselves. A personal representative is a fiduciary, with a fiduciary duty to the estate and its heirs and beneficiaries.
Since the personal representative is often an heir to the estate, this can lead to sticky situations where they are responsible for distributing assets to themselves in a way that’s fair and doesn’t benefit themselves at the expense of another heir.
When is a personal representative within their rights to distribute desirable assets to themselves, and when does that cross over into the territory of breach of fiduciary duty? That’s a judgment call that sometimes must be decided by the court. See this blog on the SC Supreme Court case of Bennett vs Estate of King, 2022, for a real-life example.
Breach of fiduciary duty encompasses clearly wrong actions like intentionally stealing money from the estate. But there need not be malicious intent; something like failing to pay outstanding taxes on time or distributing assets before all creditors are paid can be considered a breach of fiduciary duty, too.
A beneficiary or unpaid creditor who has suffered a loss from the personal representative’s actions or mismanagement of the estate may bring a civil claim against them. A personal representative may be found personally liable for damages caused, meaning you as the personal representative could be responsible for using your own money to make up for any mistakes and mismanagement. For this reason alone, working with a probate attorney is a good idea, since it minimizes your risk of personal liability.
Estate Planning in South Carolina
For help settling an estate in South Carolina, contact estate planning and probate attorney Gem McDowell. Gem and his team at the Gem McDowell Law Group help people across South Carolina with probate and estate planning, including creating last wills, trusts, and powers of attorney, for estates large and small. Call Gem at his Mt. Pleasant office at 843-284-1021 today.
